Common Law SuitsPrior to the adoption of several modern statutes in the United States, the only way in which a private individual could prevent harm through the courts was by exercising his or her rights under common law. These rights are based on precedents set during centuries of case-by-case adjudication in Great Britain and the U.S. They allow individuals to counteract harms caused by the behavior of others by seeking compensation for those harms and/or obtaining a court order halting the offending behavior. Even with the advent of statutory citizen suit provisions, common law causes of action continue to provide an important mechanism for achieving environmental protection goals.
Most common law claims require some injury or threat of injury to the plaintiff’s person or property. A person suffering a “substantial and unreasonable interference with the use and enjoyment of an interest in land” can bring a private suit. For example, a property owner could sue a neighboring factory for emitting dangerous or even annoying fumes that permeated his or her property. Another common law claim for injury to property is trespass, which requires an actual physical invasion of the property’s limits. A fuel storage facility whose tanks leaked oil that flowed into a neighbor’s fish pond might be liable to the pond-owner in a trespass suit
Common law actions can compensate for injury to one’s person as well.The potential strength of such common law suits as a weapon in the enforcement arsenal stems from the financial costs they can impose on a violator. Common law claims are the only avenues through which individuals can recover for damage to themselves or their personal property. And damages awarded in such suits in the U.S. can be substantial. For example, a potential court judgment for personal injury resulting from toxic pollution could include compensation for medical expenses, lost wages, and diminished earning capacity. Damages in a common law suit involving a newborn baby who will be permanently disabled by injuries caused by the defendant’s polluting activities could easily amount to millions of dollars. (46) The threat of a sizeable award of damages can substantially strengthen a citizen’s power to trigger compliance — it can deter potentially polluting activities and force industry to pay attention to citizens’ claims.
The common law actions described are aimed primarily at correcting violations of individual rights. By fining a defendant for such violations, or by ordering a halt to the offending activity, they can lead to broader environmental benefits as well. The common law also provides mechanisms through which citizens can vindicate public, rather than private, rights. These doctrines generally require that the plaintiff share some personal stake in the “public” goal pursued in the suit; moreover, they do not allow the plaintiff to recover money damages from the defendant unless the plaintiff has suffered injury to his or her person or property. Nonetheless, the doctrines of public nuisance, public trust, and certain broad statutory mandates reveal some of the possibilities inherent in the flexibility of judge-made law.
Public nuisance involves interference with public rights such as the right to health, safety, or comfort. Traditionally, only the government could sue to protect these rights. Recent developments, however, allow suits by individuals who suffer “special injury” different in kind from that suffered by the rest of the public. (47)
A second common law action that recognizes communal rights is known as the “public trust” doctrine. This doctrine posits that the government must hold public lands and natural resources in trust for the use and enjoyment of the citizens. If the government fails to consider this trust in its management and maintenance of resources like navigable waters, fisheries, or parklands, individual citizens may sue those in control of the lands. (48)
While the doctrine is, at first glance, not applicable to privately-owned land, some state and federal courts have hinted that a regulatory or contractual link between the landowner and the government may be enough to bring the doctrine into play and to render the landowner liable for environmental harms. (49)
Finally, some U.S. states have explicitly recognized public rights to environmental quality in their statutes and constitutions. Most constitutional provisions have been ineffective, because they do not permit citizens to sue for the violation of their constitutional environmental rights. Michigan’s unique Environmental Protection Act, adopted in 1970, has been more successful. The Act permits any person to sue any other person “for the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction.” (50)
It grants courts broad powers of review of both individual and agency actions, and permits orders altering or halting the harmful activities unless there is no “feasible and prudent alternative consistent with the reasonable requirements of the public health, safety, and welfare.” Michigan courts have interpreted the Act as conferring upon them the responsibility of creating “the equivalent of an environmental common law.” (51) See http://www.globallabourrights.org/alerts?id=0125
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), was a case in which the United States Supreme Court ruled that an implied cause of action existed for an individual whose Fourth Amendment freedom from unreasonable search and seizures had been violated by federal agents. The victim of such a deprivation could sue for the violation of the Amendment itself, despite the lack of any federal statute authorizing such a suit. The existence of a remedy for the violation was implied from the importance of the right violated. Bivens has been subsequently interpreted to create a cause of action against the federal government similar to the one 42 U.S.C. § 1983 creates against the states. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971Bivens held, for the first time, that a federal court may hold individual government agents liable for money damages for violating a person’s Fourth Amendment rights. The Supreme Court further established that the Constitution itself implies a ‘‘cause of action,’’ that is, a right to sue, government agents responsible for conducting unreasonable searches and seizures.
Cashen v. Spann, 125 N.J. Super. 386 (App. Div. 1973)A cause of action for civil damages arising from the violation of a plaintiff’s rights under the Fourth Amendment of the United States Constitution was recognized by our Appellate Division [at 403-404] the significance of the decision is the fact that our courts do recognize tort actions based upon violations of an individual’s constitutional rights. In criminal cases the Fourth Amendment protection has been largely given a priority second to [143 N.J. Super. 568] the goal of ascertaining the truth, and evidence seized under search warrants is permitted even where the latter were based on affidavits containing false information. The deterrent factor is now said to lie in civil damage suits, together with contempt proceedings and perjury prosecutions. State v. Petillo, 61 N.J. 165, 194 (1972), cert. den. 410 U.S. 945, 93 S.Ct. 1393, 35 L.Ed.2d 611 (1973). Even the New Jersey Attorney General in an amicus curiae brief recently filed in Wolff v. Rice, 422 U.S. 1055, 95 S.Ct. 2677, 45 L.Ed.2d 707, decided July 6, 1976, and published under the foreboding title, “Demise of The Exclusionary Rule,” 3 Crim. Justice Q. 169, 178 (Fall 1975), argues that civil damages is a more rational form of deterrent than the exclusionary rule since it allows criminal justice to be pursued and at the same time for correction of the offense to the individual. Cited as authority is Cashen v. Spann, 66 N.J. 541 (1975)
See BRISCOE v. LaHUE, 460 U.S. 325, 365If the case involves a substantial public interest, a person has standing to bring action in lieu prerogative writs if he or she has merely a slight private interest. Elizabeth Fed. Sav. & Loan Ass’n v. Howell, 24 N.J. 488, 132 A. 2d 779 (1957). Cases involving misfeasance, malfeasance, or corruption of local officials. Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 86 A. 2d 201 (1952). demonstrating that Congress, when enacting the Civil Rights legislation was hostile to the considerable CORRUPTION of the Judiciary and the Legal system: See, e. g., Cong. Globe, 42d Cong., 1st Sess., App. 78 (Rep. Perry) (“Sheriffs, having eyes to see, see not; judges, having ears to hear, hear not; witnesses conceal the truth or falsify it; grand and petit juries act as if they might be accomplices”); id., at 394 (Rep. Rainey) (“[T]he courts are in many instances under the control of those who are wholly inimical to the impartial administration of law and equity”); id., at App. 186 (Rep. Platt).